The Case for Early Retirement

April 28, 2011

Justices Ruth Bader Ginsburg and Stephen Breyer should soon retire. That would be the responsible thing for them to do. Both have served with distinction on the Supreme Court for a substantial period of time; Ginsburg for almost 18 years, Breyer for 17. Both are unlikely to be able to outlast a two-term Republican presidential administration, should one supersede the Obama administration following the 2012 election. What’s more, both are, well, old: Ginsburg is now 78, the senior sitting justice. Breyer is 72.

Is such a suggestion an illicit politicization of the Court? No. It is simply a plea for realism, which is often difficult to muster in the face of the idolatry that suffuses popular thinking about the justices and their role in American democracy. There is no question that the justices are often strategic in deciding when to depart the bench, even if they are quiet about their aims. One can confidently assume, for instance, that Justice Antonin Scalia would be especially loath to retire during Obama’s presidency. The special reluctance would stem from an apprehension that Obama’s nominee as a successor would likely harbor juridical views antagonistic to those that Scalia cherishes. That apprehension will prompt Scalia to make a special effort to hold on to his seat until a very different sort of politician occupies the White House—a president more likely to nominate a jurist more in keeping with Scalia’s conservative outlook.

There is nothing wrong in principle with such a calculation. A justice should have a deep, even passionate, commitment to his or her judicial philosophy and therefore act within his or her lawful powers to advance that perspective. Cloaked with lifetime tenure, federal judges have a unique power to determine when their judicial careers should end and thus possess an important, though oft-overlooked, way of influencing the trajectory of the federal bench. Many federal judges exercise this power by retiring or taking senior status (a form of semi-retirement) when a president sharing their political-juridical values is in office. Thus it is that liberal-leaning justices such as Harry Blackmun, John Paul Stevens, and David Souter retired during the Clinton and Obama presidencies, while more conservative-leaning justices such as Sandra Day O’Connor, Lewis Powell, and Warren Burger retired during the Reagan, Bush I, and Bush II presidencies.

If Ginsburg or Breyer (or both) announced retirement at the end of this Supreme Court term (pending the confirmation of successors), they could virtually guarantee that President Obama would get to select their replacements. Senate Republicans have shown themselves to be willing to stymie the process of judicial confirmation and leave vacancies open for long periods of time. The Supreme Court, however, occupies a different status than federal trial and appellate courts. Even the most recalcitrant Republican senators seem to acknowledge that Supreme Court vacancies should be filled without undue delay. That is why Ginsburg and Breyer need to act soon. If they wait much beyond the end of this Supreme Court term, the Republicans will delay confirmation, praying for an upset in the presidential election.

If Ginsburg and Breyer abjure retirement and Obama wins, the justices’ subsequent departures will be relatively harmless. On the other hand, if Obama loses, they will have contributed to a disaster. The career of Justice Thurgood Marshall is a cautionary tale. When asked about the prospect of retiring, he remarked on several occasions that his appointment was for life and that he intended to serve out his term fully. We now know, of course, that the end of Marshall’s time at the Court was less dramatic than that but deeply saddening nonetheless. Plagued by failing health, he retired on June 27, 1991, setting the stage for President George H. W. Bush to replace “Mr. Civil Rights” with Clarence Thomas, who has become, ideologically, the most retrograde justice since World War II. It must have been agonizing for Marshall to witness his seat pass to the ministrations of a man whose views on the most pressing issues of our time were so balefully hostile to his own. Now, if Justice Ginsburg departs the Supreme Court with a Republican in the White House, it is probable that the female Thurgood Marshall will be replaced by a female Clarence Thomas.

Justices Ginsburg and Breyer have enriched the nation with long, productive, admirable careers. They have propounded a moderately liberal jurisprudence that, at its best, has defended civil liberties, protected the rights of the marginalized, and asserted the authority of the federal government against invocations of reactionary originalism. Their estimable records will be besmirched, however, if they stay on the bench too long. They should announce their retirements this spring, effective upon the confirmation of successors. Those, like me, who admire their service might find it hard to hope that they will soon leave the Court—but service comes in many forms, including making way for others.

Randall Kennedy clerked for Justice Thurgood Marshall and is the Michael R. Klein Professor of Law at Harvard University.